Westminster, California STATE OF CALIFORNIA AGRICULTURAL LABOR RELATIONS BOARD T. ITO & SONS FARMS, Respondent, and UNITED FARM WORKERS OF AMERICA, AFL-CIO, Charging Party. Case No. 83-CE-200-EC 11 ALRB No. 36 DECISION AND ORDER SETTING ASIDE ELECTION This is a technical refusal to bargain case. The underlying election petition was filed on March 29, 1982, 1/ and a 48- hour strike election was held on March 31. The tally of ballots showed the following results: UFW . . ................. 212 No Union ................ 121 Unresolved Challenged Ballots . . .... 18 Void Ballots .............. 7 Total . . ................ 358 T. Ito & Sons Farms (Employer/Respondent) filed 38 election objections, 23 of which were set for hearing. The Investigative Hearing Examiner (IHE), Beverly Axelrod, categorized the /////////////// /////////////// 1/ Unless otherwise noted, all date references herein are to 1982. ) ) ) ) ) ) ) ) ) ) )
Transcript
Westminster, California
STATE OF CALIFORNIA
AGRICULTURAL LABOR RELATIONS BOARD
T. ITO & SONS FARMS,
Respondent,
and
UNITED FARM WORKERS OFAMERICA, AFL-CIO,
Charging Party.
Case No. 83-CE-200-EC
11 ALRB No. 36
DECSETTI
This is a technica
underlying election petition
hour strike election was held
showed the following results
UFW. . . . . .
No Union . . . .
Unresolved Challenge
Void Ballots . . .
Total. . . . .
T. Ito & Sons Farms (Employe
objections, 23 of which wer
Hearing Examiner (IHE), Beve
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1/Unless otherwise noted, a1982.
)))))))))))
ISION AND ORDERNG ASIDE ELECTION
l refusal to bargain case. The
was filed on March 29, 1982,1/ and a 48-
on March 31. The tally of ballots
:
. . . . . . . . . . . . . 212
. . . . . . . . . . . . 121
d Ballots. . . . . . 18
. . . . . . . . . . . 7
. . . . . . . . . . . . . 358
r/Respondent) filed 38 election
e set for hearing. The Investigative
rly Axelrod, categorized the
ll date references herein are to
Employer's objections into four general groups,2/ and after
evaluating the evidence in support thereof, recommended dismissing
the objections and certifying the election results. The Agricultural
Labor Relations Board (ALRB or Board) adopted her Decision in its
entirety. (See T. Ito & Sons Farms (1983) 9 ALRB No. 56.)
In issuing a complaint against Respondent for its
refusal to bargain, the General Counsel argues that Respondent's
litigation posture is reasonable and in good faith. The General
Counsel therefore opposes the imposition of the makewhole remedy. The
Charging Party, United Farm Workers of America, AFL-CIO (UFW or
Union), excepts to the General Counsel's failure to request
makewhole. Respondent's contention is that the certification is
invalid. Respondent requests the Board to reconsider the Decision in
9 ALRB No. 56, and set aside the election, or in the alternative, to
find that its litigation posture is reasonable and in good faith,
rendering makewhole inappropriate.
RECONSIDERATION OF ELECTION DECISION
Initially, we address the question of whether the Board
2/The four general categories are:
a) The election petition was not properly filed in the regionaloffice;
b) The Board agents had no credible basis for determining that amajority of employees were on strike;
c) UFW agents and supporters coerced and frightened employees,before and during the election, into voting for the UFW; and
d) Board agents failed to conduct the election proceedingsproperly, failed to police the quarantine area, manipulated thechallenged ballots to favor pro-UFW voters and told voters tovote for the UFW.
11 ALRB No. 362.
should reconsider its Decision in the underlying representation
case, as requested by Respondent. Early on, the ALRB adopted the
National Labor Relations Board's (NLRB or national board)
proscription against the relitigation of election-related issues
during the technical refusal-to-bargain proceeding, absent newly
discovered or previously unavailable evidence. (See, e . g . , Sunnyside
Nurseries, Inc. (1979) 5 ALRB No. 23, overruled on other grounds (1st
C o . , Inc. (1984.) 271 NLRB No. 7 [116 LRRM 1281], the NLRB vacated
an earlier certification and dismissed a complaint alleging a refusal
to bargain. Its reversal was based upon its adoption of the
position taken by dissenting Chairman Dotson and Member Hunter in
the underlying representation case, namely that misconduct occurred
which resulted in an atmosphere of fear and reprisal and prevented a
free and fair election. In dissenting to the reversal, Member
Zimmerman, while conceding that the majority had authority to
reconsider its earlier representation decision, argued against the
wisdom of doing so, noting that the need for stability and finality
in litigation required that representation issues, having been once
litigated, should not be relitigated merely because of a change in
the composition of the Board. In response, the majority stated:
While we share our dissenting colleague's concern withstability in law and finality in litigation, at the sametime we believe that the just resolution of questionspresented to the Board is our primary duty. Therefore whilereconsideration of issues in technical refusal-to-bargaincases, may, in some instances, cause delays or involvechanges in Board law, we are not
11 ALRB No. 36 3.
willing to grant a Motion for Summary Judgment thatwould result in an order requiring an employer to.bargain with a union that has not attained the statusof majority representative from a free and fairelection.(271 NLRB No. 7, slip op. at p. 3 . ) 3/
As will be explained below, because we conclude that the
election in this case was conducted in an atmosphere of fear and
coercion, we hold that this case appropriately falls within the
exception established in Subzero Freezer Co., Inc., supra, 271 NLRB
No. 7, to the general rule proscribing relitigation
of representation issues at the technical refusal-to-bargain
stage. 4/ Accordingly, we set aside the election.
Atmosphere of Fear and Coercion
In her Decision, the IHE found that on Saturday,
March 27, workers in foreman Miguel Rodriguez' crew at the Katella
field engaged in a work stoppage for a pay increase. After Bill
Ito, Respondent's general manager, sent home the Rodriguez crew for
the day, approximately 40 members of the crew then went to the
Walker field and yelled at the workers there to stop working. When
some of the Katella workers tried to enter the field to
3/The ALRB has itself reconsidered election-related issues at thetechnical refusal-to-bargain stage, even in the absence of newlydiscovered evidence. (See Sutti Farms (1981) 7 ALRB No. 42; Triple EProduce Corp. (1980) 6 ALRB No. 46 , (reversed on other grounds)TripleE Produce Corp. v. ALRB (1983) 35 Cal.3d 42.)
4/Neither of our dissenting colleagues presents any persuasivearguments for not relying on Subzero Freezer C o . , Inc., supra, 271NLRB No. 7. In particular, Member Henning relies upon minor,meaningless differences between the two cases and totally ignoresthe major similarity: The underlying election case was conducted inan atmosphere of fear and coercion.
11 ALRB No. 364.
talk to the Walker crew, Ito told them to stay out. Ito then
decided to send the Walker workers home also.
The IHE failed to either credit or discredit the
testimony of employees Anita Jaime or Jesus Diaz5/ concerning
threats made to the workers at the Walker field incident. Anita
Jaime testified that the Katella workers swore and yelled at them to
get out of the field so that the boss would pay more, and that if
the workers didn't leave the field they would call the Immigration
and Naturalization Service (hereinafter INS or immigration service)
on them or beat them out. (Tr. VII:57; VIII:6 4 . ) Jesus Diaz
testified that the group also swore at them and threatened to call
the immigration service or beat them. Both Jaime and Diaz estimated
that 80 to 90 workers were working in their crew.6/
The IHE found that later in the day, a group of
approximately 70 workers (some from Katella and some from Walker)
drove to Respondent's Irvine field. The striking workers stopped
along the road and yelled at the Irvine workers to stop working
5/Jesus Diaz testified that his, foreman is Miguel Rodriguez,foreman of the Katella field workers. However, from his testimony,it is apparent he was working at the Walker field on Saturday sincehis testimony related to a group of workers arriving to yell atemployees to leave work.
6/The threats to call the immigration service or to beat upworkers were similar to threats found to have occurred on otheroccasions. Hence we rely on them. (See Westwood Horizons Hotel(1984) 270 NLRB 802 [116 LRRM 1152], p. 802, fn. 4 . ) The IHEsustained an objection to Diaz' testimony that he felt bad aboutthe threat of calling the immigration service and that manyemployees were scared. (Tr . I I I : 1 9 . ) There was testimony that theImmigration and Naturalization Service (I N S ) raided the Employer'sproperty the previous Monday and arrested some workers. (Tr. III:21;V:141.)
5.
11 ALRB No. 36
and cursed those who remained. The IHE credited testimony that
some of the striking workers picked up rocks while they were
yelling, but found that none were thrown.
Bill Ito and foreman Marciano Figueroa testified that
approximately 70 to 80 workers were working at the Irvine field that
afternoon. Although the IHE made findings that curses were made and
that strikers held rocks in their hand, she did not specify the
source of the testimony. It is clear, however, that the findings
were based upon the testimony of foreman Marciano Figueroa.
Figueroa testified that the strikers swore at the workers, grabbed
sticks and rocks, and threatened to beat them and call the
immigration service if they did not get out. (Tr. I:107-113.)
Juana Hernandez similarly testified that the strikers yelled that they
would get them out and that she was afraid to go back to work because
of the threats. (Tr. VIII:72.)
The IHE also credited the testimony of Figueroa and Ito
that strikers led by worker Alvaro Vasquez blocked vans inside the
Irvine field. Fifteen to sixteen workers were inside Figueroa's van
when Vasquez blocked their exit and ordered the workers off the bus.
Vasquez told Figueroa that he did not want him to come back to work
the next day. When Figueroa explained that he had to work to pay
debts, Vasquez warned him that if anything happened to him during
work, he (Figueroa) would have to bear the consequences because he
had already been warned. (Tr. I:116.) Figueroa then drove a short
distance to the entrance of the field where a group of 25 to 30
strikers was blocking the exit and screaming at him. All of the
workers in Figueroa's
6.11 ALRB No. 36
crew were still on the ranch and within 20 yards of the entrance,
their exit blocked by the strikers. (Tr. I:121.) The workers let
Figueroa through when one of the strikers interceded on his behalf.
Bill Ito testified that he was advised by a worker who
could not drive his van out of the field that the strikers were
blocking the road. Ito went to the van and tried to drive it out but
about 10 of the strikers blocked him. There were 10 to 15 workers
inside the van who jumped out. The strikers told him that the Irvine
people could not leave the field. Ito testified that Alvaro Vasquez
came up to him while he was still inside the van and swung a stick at
him. Vasquez kept swinging the stick over his (Vasquez') head.
Although Vasquez denied having a stick in his hand while he argued
with Ito, the IHE discredited his denial; however, the IHE credited
Ito's testimony that he was not really concerned about his safety.
(Tr. I:29-35.) Ito testified that there were about 50 workers
around his van when this incident occurred. The matter ended when
Ito agreed to hold a meeting with the workers the next day.
On Monday, March 29, a large group of strikers gathered at
the Katella field where approximately 50 to 70 workers were working
in the field. A smaller group of 10 to 15 workers shouted and
cursed at the employees, threatened to call the INS on them, and
challenged them to come out of the field and fight. In addition,
workers Jesus Diaz, Gerardo Nunez, Francisco Ruiz and Jose Gascon
testified that the strikers threatened to beat them up or damage their
cars. (Tr. III:30; V:125; VI:121; VI:89.)
7.11 ALRB No. 36
A group of four strikers punctured a tire of one of the
nonstriker's vehicles parked at the edge of the field.
None of the strikers participating in the above incidents
wore Union buttons or other union insignia. It is unclear whether
the Union was called on Sunday or Monday, but the evidence showed
that the Union did not arrive at the Employer's premise until Monday
afternoon, March 29. It appears that the employees' strike was
initially aimed at securing a pay raise, but turned into a campaign
for the Union on Monday afternoon. Once the Union arrived, it
quickly gathered authorization cards and filed an election petition
at the end of the day on Monday.
The IHE found that during the election on Wednesday, March
31, small groups of union supporters, wearing union buttons,
continually entered and left the quarantine area and campaigned
among prospective voters. The IHE failed to account for the
testimony of various witnesses to the effect that while they were
waiting in line to vote, the campaigning union supporters threatened
them. Thus, Mauricio Bernal testified that one of the union
supporters, Alfonso Alejandres, who was not in line to vote,
approached him and stated that if he did not support the Union, they
were going to fire him from his job and report him to the
immigration service. The same group of union supporters, including
Alejandres, continued to talk to other workers arriving to vote.
(VI:6 2 . ) Jose Gascon testified that a group of 6 or 7 UFW
supporters, including Alfonso Alejandres, approached him and about
80 other workers waiting to vote and
11 ALRB No. 36 8.
told them to support them or they would call the INS. (VI:9 1 . )
Francisco Ruiz, a company observer, testified that he heard union
supporter Juana Barrera tell his wife to vote for the Union because
if she didn't, they were going to get the Immigration and
Naturalization Service after her and, if the Union won, she would
lose her job. (VI:134.) Juan Vallejo, another company observer,
testified that he also heard Juana Barrera make threats about the
INS to each group that arrived to vote, in all 6 or 7 times during
the election.7/
Analysis
The California Supreme Court, in Triple E Produce Corp.
v. ALRB (1983) 35 Cal.3d 42, noted that although the NLRB employs
the "laboratory conditions" standard in reviewing the conduct of an
election and the ALRB utilizes the "outcome-determinative" test,
both employ the same standard for evaluating the impact of violence
or threats thereof on the election process. Thus the NLRB and ALRB
will set aside an election only when the misconduct involved
creates an atmosphere of fear or coercion (or reprisal) rendering a
free choice of representatives impossible. (See Patterson Farms
(1976) 2 ALRB No. 59; Steak
7/There was testimony by UFW witnesses that no campaigningor threats occurred either at the fields or during the election.However given the IHE's specific findings that similar threatswere made and that campaigning during the election did occur,these general denials are not entitled to much weight. In anyevent, the failure of the ALJ to discredit the testimony of thefour witnesses as to the threats about calling the INS, and thefact that testimony concerning similar threats made prior tothe election was credited by the IHE, leads us to conclude thatthe testimony about the election-day threats ought to becredited. (See Westwood Horizons, supra, 270 NLRB 802,f n, 4 . )
11 ALRB No. 36 9.
House Meat Co. (1973) 206 NLRB 28 [84 LRRM 1200].)8/
Where the misconduct found to have been committed is not
attributable to any union official, organizer, or agent, but rather
is attributable to union supporters or workers in general, both the
ALRB and NLRB give less weight to it than is given to misconduct
attributable to the parties. (See San Diego Nursery Co., Inc.
Whether a statement is coercive does not turn on an
8/Thus it is not surprising that ALRB decisions dealing withthreats and violence cite standard NLRB cases for precedent bearingon the question of whether there exists an atmosphere of fear andcoercion. (See Patterson Farms, supra, 2 ALRB No. 59; Joseph GubserCo. (1981) 7 ALRB No. 33; Frudden Enterprises, Inc. (1981) 7 ALRBNo. 22; A & D Christopher Ranch (1981) 7 ALRB No. 31 (overruled onother grounds,(1st Cir.,Di v.3, (1985) A020605); J. Oberti, Inc.(1984) 10 ALRB No. 50.)
9/The persuasive reasons for this policy are well summarizedin NLRB v. ARA Services (3rd Cir. 1983) 717 F.2d 57[114 LRRM 2377, 2383], See also Clothing & Textile Workers v.NLRB (DC Cir. 1984) 736 F.2d 1559 [117 LRRM 2453, 2457].
10/Both NLRB and ALRB cases stress that where an atmosphereof fear and coercion exists, the fact that the misconduct isnot attributable to the union is irrelevant. (RJR Archer, Inc.(1985) 274 NLRB No. 49 [118 LRRM 1513]; Patterson Farms, supra,2 ALRB No. 5 9 . )
10.11 ALRB No. 36
employee's subjective reaction but instead depends upon whether the
statement reasonably tends to coerce an employee. (See Triple E
Produce Corp. v. ALRB, supra, 35 Cal.3d 42; G. H. Hess, Inc. (1949)
82 NLRB 463 [23 LRRM 1581].) Once a threat has been established,
whether it constitutes aggravated misconduct depends upon the
character and circumstances of the threat, and not merely on the
number of employees threatened. (See Patterson Farms, supra, 2 ALRB
No. 59; Steak House Meat C o . , supra, 206 NLRB 28; Central
Photocolor, supra, 195 NLRB 839.)
On many occasions, the NLRB has found that threats of
physical beatings or of violence by nonparty union adherents can
establish an atmosphere of fear and coercion.11/ (Poinsett Lumber
Meat Co., Inc., supra, 206 NLRB 2 8.) In Poinsett Lumber there were
four separate incidents of threats by union supporters, including two
involving threats of physical beatings. The NLRB stated that
"threats of personal retaliation and of physical violence made to
employees and the concomitant coercive effect thereof, constituted
such serious conduct as to interfere with a free and untrammeled
choice of representatives contemplated by the Act." (116 NLRB at
1739.)12/
11/Where actual violence occurs, an atmosphere of fear andcoercion is readily established. (See Al Long, Inc. (1968) 173NLRB 447 [ 6 9 LRRM 1366]; Ciervo Blanco, Inc. (1974) 211 NLRB 578[86 LRRM 1452]; Phelan and Taylor (1976) 2 ALRB No. 22.)
12/See also the following NLRB cases wherein the NLRB foundan atmosphere of fear or coercion established by the actions
(fn. 12 cont. on p. 1 2 . )
11 ALRB No. 36 11.
A recent NLRB decision is illuminating. In Westwood
Horizons Hotel, supra, 270 NLRB 802, about two weeks before an
election, Marcial, a pro-union employee, told employee Luna, in the
presence of three pro-union employees and two or three other
employees, that he would beat up Luna if he did not vote for the
union. Marcial also threatened to beat up employees Garcia and
Fuentes (who were not present) and any other employee who did not
vote for the union. One of the other pro-union employees, Naharo,
repeated the same threat. Luna replied he was with them and would
vote for the union so he would not be beaten up. On election day,
Marcial approached Garcia, one of the employees he had threatened to
beat up, and told him to go vote. When Garcia said he would vote
later, Marcial told him he had to go with him immediately, grabbed
his arm and held it during the five minute walk to the voting area.
Naharo told one of the 15 voters waiting to vote that Marcial had
used force to bring Garcia. Several of the employees waiting in line
began talking about it and Marcial just laughed. Marcial then took
Garcia to the front of the voting line and the two voted.
(fn. 12 cont.)
of union supporters: Diamond State Poultry Co . , Inc. (1953)107 NLRB 3 [33 LRRM 1043]; Audiovox West Corp. (1978) 234- NLRB 428[ 9 7 LRRM 1388]; Sonoco of Puerto Rico, Inc., supra, 210 NLRB 493.
(See also NLRB v. Claxton Mfg. Co. (5th Cir. 1980) 613 F.2d 1364[103 LRRM 2 9 8 0 ] ; Hickman Harbor Service v. NLRB ( 6 t h Cir . 1984)739 F.2d 214 [116 LRRM 3119]; NLRB v. Van Gorp Corp.(8th Cir. 1980) 615 F.2d 759 [103 LRRM 2766]; Zieglers RefuseCollectors, Inc. v. NLRB (3rd C i r. 19 81) 63 9 F.2d 1000"L106 LRRM 2331]. )
12.11 ALRB No. 36
After he voted, Marcial and three other pro-union employees
went to get Fuentes, another of the employees he had threatened
earlier. Again they told Fuentes to go vote, and when Fuentes
explained he was still working, Marcial told him he would go
immediately with them or by force. Fuentes went with them. While
waiting in line to vote along with Luna (also threatened 2 weeks
earlier) and 10 other employees, Marcial and 6 other pro-union
employees who had already voted stood on both sides of the line,
repeating "vote for the union." This activity continued for three
minutes until a board agent came to the doorway of the voting room
and told the employees to leave. The pro-union employees left for a
few seconds, but returned and continued the activity outside the
voting room for 10 minutes.
In overruling the hearing officer's conclusion that the
threats were not serious, the NLRB explained the test it utilizes:
In determining the seriousness of a threat, the Boardevaluates not only the nature of the threat itself, but alsowhether the threat encompassed the entire bargaining unit;whether reports of the threat were disseminated widelywithin the unit; whether the person making the threat wascapable of carrying it out and whether it is likely thatemployees acted in fear of his capability of carrying outthe threat; and whether the threat was "rejuvenated" at ornear the time of the election.(Westwood Horizons Hotel, supra, 270 NLRB 802, 803.Footnotes omitted.)
The NLRB found in Westwood Horizons Hotel that the
threats, when considered with other misconduct on the day of the
election, did create a general atmosphere of fear and reprisal that
interfered with the election:
11 ALRB No. 36 13.
Marcial and Naharo threatened to beat up not only employeesGarcia, Fuentes, and Luna, but also any other employeewithin the bargaining unit who decided not to vote for theUnion. These threats were disseminated to some extentwithin the unit, because two or three employees, not shownto be union adherents, were present when the threats weremade.
On election day, Marcial and other prounion employeesrejuvenated the threats by physically taking Garcia to thevoting area and by forcing Fuentes to vote and telling himto vote for the Union, even though, as Fuentes latertestified, he did not want to vote at all. Not only wereGarcia and Fuentes likely to be intimidated by such conduct,but so also were the 15 other employees waiting in line tovote who saw Marcial bring Garcia to the voting area andheard prounion employee Naharo tell one of the employeeswaiting in line to vote that Marcial had used force to bringGarcia to the voting area. Marcial and six union adherentsfurther intimidated Fuentes, Luna, who was standing in linebehind Fuentes, and the 10 other employees waiting in lineto vote by continually repeating for about 10 minutes thatthe employees should vote for the Union.(Westwood Horizons Hotel, supra, 270 NLRB 802, 803.Footnotes omitted.)
Utilizing the test enunciated in Westwood Horizon Hotel,
it is clear that an atmosphere of fear and coercion existed in this
case. The threats here involved not only physical beatings, as in
Westwood, but also threats to call the INS. The threats were
directed at large groups of the employer's work force --between 150
and 170 workers on Saturday, March 27, (80 to 90 workers at Walker;
70-80 workers at Irvine), and between 70 and 80 workers at the
Katella field on Monday, March 29. The threats were widely
disseminated within the work force in that most workers were
witnesses to the threats, either as strikers or as workers in the
Katella, Walker and Irvine fields. Clearly the strikers had the
ability to carry out their threats of
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11 ALRB No. 36 14.
physical beatings and calling the INS . 13/ Indeed, the strikers
demonstrated at the Irvine field that they were serious and capable
of carrying out their threats by holding rocks in their hands while
yelling at workers, by blocking vans driven by foreman Figueroa and
general manager Bill Ito, by forcing the 10 to 15 employees in each
van to get off, by one worker swinging a stick at Bill Ito while he
argued with him in front of 50 workers,14/ and by blocking the
workers' exit from the field. On Monday, March 2 9 , strikers again
threatened workers and a tire of a worker's car was punctured. The
threats and the incidents enumerated above are the kind that would
reasonably tend to coerce employees.
As in Westwood, the threats and incidents were very close
to the time of the election and recurred (were rejuvenated) during
the voting itself when small groups of union supporters continuously
campaigned among voters standing in line to vote amidst threats of
calling the INS or of employees losing their jobs if they did not
vote for the Union. Although there was no evidence that the threats
of physical beatings were repeated by the strikers during the
campaigning at the voting site, the workers standing in line who
heard the threats of INS raids or
13/But see Blue Island Newspaper Printing, Inc. (1985) 273NLRB No. 208 [118 LRRM 1245] . )
14/Although the IHE credited Bill Ito's testimony that he was notreally concerned about his physical safety during the incident,Ito's subjective reaction is irrelevant to a determination as towhether Vasquez ' actions would reasonably tend to coerce the 50employees who witnessed the incident or those who may have heard aboutit. (See Triple E Produce Corp., supra, 35 Cal . 3d 42.)
11 ALRB No. 3615.
job loss were not likely to forget that these same threats were
accompanied previously by threats of beatings made by the strikers
just days before.
The threats of physical beatings and calling the INS in
this case were not trivial, lightly taken, ambiguous, or outside the
abilities of the speakers to carry out, factors which the NLRB or
federal courts of appeals have considered in not finding statements
coercive.25/ Nor can the threats in this case be considered
noncoercive on the basis that they are common language or
expressions of temper which employees can evaluate as partisanship.
(See NLRB v. Bostik, supra, 517 F.2d 971; Owens-Corning Fiberglas
Corp. (1969) 179 NLRB 219 [ 6 9 LRRM 1288].) Central, to these
cases is the isolated nature of incidents and/or the lack of any
serious violence accompanying the statements. In this case, the
threats were widespread, directed at a large portion of the voting unit
( i . e . , nonstrikers), repeatedly made, accompanied by some acts of
force, arid made during the time workers were waiting in line to
vote, all with the purpose of coercing workers to join the strike or,
on the day of the election, to vote for the Union.
Several ALRB cases dealing with strike misconduct prior
to an election" are distinguishable. In A & D Christopher Ranch,
15/(ATR Wire and Cable (1983) 267 NLRB 204 [114 LRRM 1 0 0 6 ] ;American Wholesalers, Inc. (1975) 218 NLRB 292 [89 LRRM 1352]; UrbanTelephone Corp. (1972) 196 NLRB 23 [79 LRRM 1 62 5] ; NLRB v. Bostik( 6 t h Cir. 1975) 517 F.2d 971 [89 LRRM 2585]; Tunica Mfg. Co.(1970) 182 NLRB 729 [76 LRRM 1535]; Beaird Poulan Div. (1980) 247NLRB 1365 [103 LRRM 1 389] ; Central Photocolor, I n c . , supra, 195 NLRB8 3 9 . )
11 ALRB No. 3616.
supra, 7 ALRB No. 31 (overruled on other grounds, (1st Cir.,
Div. 3, (1985) A020605) an incident in which a woman threw a garlic
head at a labor contractor in a field was found to be de minimis
where the picketing was otherwise a peaceful plea for support.
Another incident in which strikers blocked the entrance to a
labor camp in order to prevent nonstrikers from working was
unaccompanied by threats or violence. In the instant case, the
incidents and threats were not isolated or peaceful. J. Oberti,
Inc. (1984) 10 ALRB No. 50 is similarly distinguishable in that
strikers entering olive fields were generally peaceful and
nonthreatening, and ladders were shaken merely to get workers'
attention rather than to threaten them.
In Joseph Gubser C o . , supra, 7 ALRB No. 33, a field
rushing incident occurred three weeks before the election. Dirt
clods were thrown, the general manager was hit by a worker with a
flag, and a tractor driver suffered a cut next to his eye from a
thrown rock, necessitating 11 stitches. Only nine workers were
working at the time of the incident and there was no competent
evidence that the incident became widely known to other employees.
The Board held, inter alia, that the level of violence was isolated
and remote from the election. See also Exeter Packers, Inc. (1983)
9 ALRB No. 76 (field rushing incidents 3 weeks before the election,
accompanied by thrown rocks, dirt clods, and tomatoes, were remote).
Unlike Gubser, the strikers' threats and misconduct here occurred
within days of the election and were directed at a large group of
nonstriking employees.
Other ALRB cases have held that field rushing incidents
17.11 ALRB No. 36
generally directed towards nonstriking employees where objects such
as garlic, tomatoes, dirt clods, and/or rocks have been thrown, have
not created an atmosphere of fear or coercion under the specific
circumstances of those cases. See Vessey Foods, Inc. (1982) 8 ALRB
that, in order to set aside an election, statements or conduct must
not only be coercive, but also must be related to the election so as
to have a probable effect on the employees' actions at the polls.
This reasoning was rejected by the NLRB in Home Industrial Disposal
Service (1983) 266 NLRB 100 [112 LRRM 1257]. Although in the
latter decision, the threat was made by a union official, the NLRB ' s
reasoning in that case applies here. Threats made in the context of
a strike that is not yet related to a union organizing drive do not
lose their coercive character as threats merely because the nature of
the employees' concerted activity changes into a union campaign. As
the Court of Appeals stated in Hickory Springs Manufacturing Co. v.
NLRB (5th Cir. 1981) 645 F. 2d 506, 510:
////////////////
11 ALRB No. 36 18.
Men judge what others will do on given occasions by theirprior actions and, less reliably, doubtless, by theirstatements about their intended future actions. So theyassess what kind of folk they are dealing with and howthose folk are likely to react if crossed. Even theimplicit threat of a club or pistol on the hip, withoutmore, may be sufficient to influence significantly theconduct of those who are cast in company with the bearer.In short, we reject the view that such pervasive threatsof violence as these can be said, in effect as a matter oflaw, not to have created a coercive atmospheresufficient to contaminate the election because they weremerely conditional ones.
In this case, although the Union had no presence at Ito &
Sons at the time the strikers engaged in the field misconduct, the
threats to beat up nonstrikers or call the INS nevertheless were
aimed at coercing nonstrikers to join the strike. Shortly after the
threats were made these same strikers became the support group behind
the union campaign. Indeed, the strike served as the basis for an
expedited 48-hour election. It would be unreasonable to believe that
the intimidation resulting from the strikers' threats would change
or lessen merely because the objective of the strike changed within
the short span of a few days from seeking a pay increase to voting
for a union representative (which would negotiate the same pay
increase). (See also Ciervo Blanco, Inc., supra, 211 NLRB 578.)
In any event, to the extent that Exeter Packers, Vessey
Foods, or Frudden Enterprises would stand for the proposition that
rock throwing or threats of beatings directed at a large portion of
the work force near the time of the election is minimal violence
insufficient to establish an atmosphere of fear or coercion, we
reject such proposition. It is clear that threats
19.11 ALRB No. 36
of physical beatings are aggravated misconduct that reasonably tend
to be coercive. Where, as here, the threats are widespread,
repeatedly made, directed at a large portion of the work force, and
accompanied by acts of violence, an atmosphere of coercion has been
established.
A final issue concerns whether the threats to call INS
were coercive. In Takara International, Inc. (1977) 3 ALRB No. 24,
UFW adherents threatened to call the INS if the union lost the
election. Although no raids had occurred in the month preceding the
threats, 30 to 40 percent of the work force was undocumented. When
rumors of the threat spread throughout the work force, other UFW
supporters attempted to reassure the undocumented workers that they
would not be reported. The Board found persuasive the NLRB's
decision in Mike Yurosek & Sons (1976) 225 NLRB 148 [92 LRRM
1535], in which the national board stated that similar threats by
union adherents were not so aggravated in character as to justify
setting aside the election. After noting that union supporters in
that case tried to reassure the undocumented workers, the NLRB stated
that "illegal aliens naturally experience some fear of detection
and deportation as a consequence of their unauthorized presence in the
U . S . , and we doubt that the threats and rumors herein,
considering their source, so exacerbated these fears as to render
any illegal alien employee incapable of exercising a free choice in
the election."
///////////////
///////////////
11 ALRB No. 36 20.
(225 NLRB at 150.)16/ The Board in Takara International, Inc.
acknowledged that threats of deportation are highly destructive and
not to be condoned. However the threats were not part of a union
policy to threaten workers, no raids had occurred within the month,
and there was no campaign of fear. The Board stated that
unfortunately undocumented workers always live in fear but no
showing had been made that their fears were worsened by the
threats.17/
We are not persuaded by the logic of the NLRB in Mike
Yurosek & Sons, Inc., supra, 225 NLRB 148, or our Board's similar
reasoning in Takara International, Inc., supra, 3 ALRB No. 24, that
such threats have less coercive effect on undocumented workers
because they already live in fear of deportation. However, in this
case, even though there was a lack of evidence concerning how many
workers were undocumented,18/ the threats
16/The NLRB distinguished its decision in Westside Hospital(1975) 218 NLRB 96 [89 LRRM 1273] where it set aside an electionbecause a union organizer, rather than union supporters, threatenedto deport a Mexican worker who was the chief spokesperson for 16coworkers.
17/See also Kawano, Inc. (1977) 3 ALRB No. 25 (raids occurredfrequently; for employees, "deportation was a fact of l i f e , " and theINS needed no assistance identifying undocumented workers).Compare Member Johnson's dissent in Takara International that thethreat of deportation strikes at the heart of an undocumentedworker's liberty and economic security: "If an illegal is led tobelieve that he could lessen his chances of deportation by votingfor a particular party, it is not unreasonable to expect he would dos o . "
18/Without any estimate or evidence as to how much of the workforce is undocumented, it is difficult to determine whether thethreats to call the INS had a coercive effect upon the workers inthe field or those waiting in line to vote. (See
(fn. 18 cont. on p. 22.)
11 ALRB No. 36 21.
to call the INS were continually made in conjunction with threats of
physical beatings. It is therefore apparent that when the threats
regarding the INS and job loss were made at the voting site, the
workers who heard such threats would continue to associate those
threats with the previously stated threats of physical beatings.
Since the INS threats were made in connection with campaigning for
the union while workers were waiting to vote, we find the INS
threats, in this context, to be coercive and, when considered
cumulatively with the other misconduct, grounds for setting aside the
election.19/
ORDER
By authority of Labor Code sections 1160.3 and 1156.3, the
Agricultural Labor Relations Board hereby orders that the complaint
in this matter is hereby dismissed in its entirety, that the
certification issued in T. Ito & Sons Farms (1983)
(fn. 18 cont. )
J. Oberti, Inc. (1984.) 10 ALRB No. 50, IHED at p. 142.) In thiscase, there was testimony from witnesses that the INS raided duringthe week before the strike began. Testimony from workers establishedthat when the INS arrived at the field, "some" (unspecified number)of workers ran and "some" (unspecified number) were apprehended.
19/Member Henning characterizes our Decision as an "ivory tower"approach to strike elections. That term would be appropriate only ifwe were willing, as Member Henning would have us b e , to toleratethreats of physical beatings and calling the Immigration andNaturalization Service, and only if we were willing to overlook thecoercive nature of such threats and their inconsistency with a basicpurpose of the Act, i . e . , that elections be conducted in anatmosphere free of fear and coercion.
22.11 ALRB No. 36
9 ALRB No. 56 is hereby vacated, and that the Petition for
Certification in this matter is hereby dismissed.20/
Dated: December 23, 1985
JYRL JAMES-MASSENGALE, Chairperson
JOHN P. McCARTHY, Member
JORGE CARRILLO, Member
20/Member Henning, in dissent, questions the professionalaccountability of two members in the majority because we today joinin setting aside the election when previously we either joined orfailed to dissent to the certification of the UFW. Regardless ofwhat our positions were in the underlying representation case, thefact remains that we now do not believe that the election wasconducted in an atmosphere that was free from fear and coercion.The reasons for our change in position are irrelevant to thequestion of whether our present position is correct, the basis forthe latter being amply explained in our Decision. It isunnecessary for us to engage in a discussion of our deliberativeprocess in order to justify our present views. Furthermore, wedecline to put more emphasis, as Member Henning does, on achievinga sense of finality in our Decisions than is put upon our primarygoal of ensuring that employees vote in an atmosphere free of fearand coercion. ( C f . J. R. Norton (1979) 26 Cal.3d 1 . )
23.11 ALRB No. 36
MEMBER WALDIE, Dissenting:
I regret the majority's decision to adopt Subzero Freezer
Co. Inc. (1984) 271 NLRB No. 7 [116 LRRM 1281]. As I stated earlier
this year in my dissent in Adamek & Dessert, Inc. ( 1 9 8 5 ) 11 ALRB N o .
8, this recent NLRB case should not be adopted without careful
reasoning and a full understanding of its ramifications. The majority
provides neither, and I remain unconvinced that we should adopt it.
In its worst scenario, Subzero allows for identical Board
members to re-examine the same record, with no new evidence whatsoever,
and come to a different conclusion, reversing their earlier decision.
That is precisely what has happened here, without any explanation
whatsoever as to why the record today looks different than it did in
1983.
Nor am I comforted by the majority's inference that Subzero
is but a limited exception to a still to be followed rule against
relitigation of election issues in a ULP proceeding. If
11 ALRB No. 36 24.
the exception can be used, as here, to justify a different conclusion
by the same Board members, the door is ajar for full entry and
reconsideration by new Board members, who may also conclude that an
employer is being required "to bargain with a union that has not
attained the status of majority representation from a free and fair
election." (Subzero, supra, slip. op. at p. 3 . ) The rule will be
swallowed by the exception, as should become evident in the months
ahead.
By adopting Subzero, the majority lengthens further the
post-election period of uncertainty regarding certification and
partially negates the progressive intent of the legislature in
adopting section 1156.3 of the Agricultural Labor Relations Act
(A ct ), to prevent the delays in election objection resolution that
have so plagued the NLRB. (See Boire v. Greyhound Corp. (1964.) 375
Raley's Inc. v. NLRB (9th Cir. 1984.) 725 F. 2d 1204, 1207 [115 LRRM
2933]; Weiler, Promises to Keep: Security Workers' Rights to Self
Organization Under the NLRA, (1983) 96 Harv.L.Rev. 1795, 1769-1803.)
Abandoning the policy against relitigation will, naturally, encourage
employers to ignore this Board's certification decision and
relitigate the issues yet again, and to do so with virtually no
concern that makewhole will be awarded against them if they are
unsuccessful. After today's decision, can it ever be argued that an
employer is "unreasonable" in attempting to change the Board's
collective mind, even when it simply reargues the same record before
the same members? It is bad policy to abandon the nonrelitigation
rule; it is bad law to virtually eliminate a
11 ALRB No. 36 25.
statutory remedy in these cases.
This case is also noteworthy for the zeal with which the
General Counsel, both in his complaint and in his brief before this
Board, defends the Respondent while attacking the Charging Party as
well as his own employees. For example, paragraph 10( c ) of his
complaint "alleges," in part:
. . . in light of the tenuous, superficial, hasty andbiased manner in which the determination of this issuewas made by the board agents, which resulted in anexpedited election, thus critically denying theemployer any time or reasonable opportunity tocampaign against the Petitioner, it is indeed notunreasonable for the employer to question and opposethe Board's resolution of this objection.
And paragraph 11 "alleges," in part:
... General Counsel was unable to find evidence or lawto justify or support the inclusion of an allegation -of or prayer for makewhole. The General Counselbelieves there is insufficient evidence to enable himto make a prima facie finding that respondent is inother than good faith in refusing to bargain withPetitioner.... Therefore General Counsel not onlydoes not include within this complaint an allegationof or prayer for makewhole, but will actively opposeany request for and/or a finding or imposition ofmakewhole herein.
Continuing to champion Respondent's cause here, the General Counsel
argues in his brief to the Board that his own inexcusable delay in
investigating the charge should relieve Respondent of makewhole.
One is tempted to wonder if the General Counsel has any
understanding of his duty to the Charging Party and his responsibi-
lities as a prosecutor. The increasing disenchantment of farm
workers with the prospects of obtaining relief for violations of the
Act from this administration would seem to have considerable
11 ALRB No. 36 26.
substance judging from the General Counsel's aggressive representa-
tion of the interest of the Respondent in this case.
Dated: December 23, 1985
JEROME R. WALDIE, Member
11 ALRB No. 23 27.
MEMBER HENNING, Dissenting:
Today, the majority of this Board sabotages one purpose and
policy of the Agricultural Labor Relations Act (ALRA), to bring a
sense of stability to agricultural labor relations by promoting
collective bargaining. While giving lip service to the well-settled
principle that in the absence of newly discovered or previously
unavailable evidence, a respondent may not relitigate issues that
were or could have been litigated in a prior representation proceeding
(see Pittsburgh Glass Co. v. NLRB (1941) 313 U.S. 14.6, 162), the
majority proceeds to create a broad exception to this clear proscription.
1/ The majority's myopic approach in this case will serve only to
promote instability and
1/As discussed below, the majority relies on Subzero Freezer Co.,Inc. (1984) 271 NLRB No. 7 [116 LRRM 1281] as authority for itssweeping change in past practice and precedent. However, theNational Labor Relations Board (NLRB or national board) continuesto adhere to this principle even after its decision in Subzero,supra. (See Dickerson Florida, Inc. (1984) 272 NLRB No. 4 [117LRRM 1195] . )
11 ALRB No. 36 28.
uncertainty and to shatter the hopes and aspirations of farmworkers
who, having waited years for the Board to certify their freely elected
collective bargaining representative, are today deprived of
representation. Those employees cannot, in the foreseeable future,
have their representative bargain with their employer concerning their
wages, hours and other terms and conditions of employment, a right
guaranteed them by the ALRA.
The majority's decision is premised on "the exception"
established in Subzero Freezer C o . , Inc., supra, 271 NLRB No. 7.
However, nowhere in its decision does the majority explain what
the "exception" is. In Subzero, supra, the NLRB vacated its
previous certification and dismissed a complaint alleging a refusal
to bargain.2/ The dismissal was based on the dissenting position
of two members in the certification case who concluded that an
atmosphere of fear and coercion rendered a fair election impossible.
Member Zimmerman filed a strong dissent expressing his concern that
stability in law and finality in litigation should not be sacrificed
merely because of a change in the composition of the Board.
The glaring differences between Subzero, supra,
271 NLRB No. 7, and the instant case cannot be masked behind the
majority's casual reference to the Subzero "exception." In the
instant case, two members of the new majority participated in this
Board's representation Decision, but were probably not
2/The case came before the national board by way of a Motion forSummary Judgement. Section 10282 of the NLRB's Casehandling Manualestablishes this procedure for technical refusal to bargain caseswhere no factual issues warranting a hearing exist.
11 ALRB No. 36 29.
concerned enough about conduct complained of by Respondent to file a
dissent. Unlike the Subzero case, no dissent was filed in the
representation Decision in this matter. And yet, members of this
Board today decide to relitigate election issues and reconsider the
underlying representation case which they themselves conclusively
decided over two years ago. Such an action is indefensible. It
cannot be supported by wisdom or even logic. The facts of the case
have not changed. The law has not changed. With the exception of one
Board member, the composition of the Board has not changed. Yet, my
colleagues now conclude that the election was conducted in an
atmosphere of fear and coercion. A reversal of Board precedent
occasioned by a change in the composition of the Board can be expected
and the resulting degree of instability in Board law must be properly
tolerated. However, it is not too much to expect some degree of
professional accountability by members of this Board so that our
decisions, especially those certifying a bargaining representative,
exhibit a sense of finality.
Aside from the "policy" reasons for distinguishing the
instant case from Subzero, several factual distinctions are also
noteworthy. In this case, the workers overwhelmingly voted for union
representation by a vote of 212 to 121. This is in sharp contrast to
Subzero where the margin of victory was a mere 2 votes (36 to 34).
In addition, it is undisputed that the alleged threats in the instant
case were made by employees well before any union
11 ALRB No. 36 30.
involvement in the organizational drive.3/ This was not the case in
Subzero. Finally, we cannot ignore the special procedure for strike
elections embodied in the ALRA. By the very nature of strike
situations, tempers and emotions run high and words become heated.
The majority's ideal of achieving a pristine election campaign is
admirable but not achievable. It reflects an "ivory tower" approach
to strike elections which effectively rewrites the ALRA and will
result in the setting aside of an inordinate number of elections. The
Legislature chose to establish an expedited election procedure in
strike situations as a means of quickly moving the parties from that
potentially volatile condition to the bargaining table. This
legislative decision should be honored, not ignored or second-guessed.
For all the foregoing reasons, I dissent.4/
Dated:. December 23, 1985
PATRICK W. HENNING, Member
3/While the majority acknowledges that misconduct of nonpartiesis given less weight than that of parties, it nonetheless appearsto attribute retroactive agency status to the union supporters.
4/I unconditionally condemn threats of violence and believethat employees should exercise their right to vote for or againstunion representation in an atmosphere free of fear and/or coercion.I strongly encourage my colleagues to closely scrutinize allegationsof threats and violence in representation cases. However, I firmlybelieve that that review must be undertaken before we certify theunion and not years later in an unfair labor practice proceeding. Weneed not compromise our concerns for untainted elections and forachieving a sense of finality and stability in our Decisions, as bothare of equal import. Both concerns can and should be accommodated.
11 ALRB No. 36 31.
T. ITO & SONS FARMS 11 ALRB No. 36Case No. 83-CE-20O-EC
In T. Ito & Sons Farms (1983) 9 ALRB No. 56, the Board dismissed allof Respondent's objections to the election and certified the UnitedFarm Workers of America, AFL-CIO (UFW) as the exclusive bargainingrepresentative of Respondent's employees. After the UFW requestedRespondent to meet and bargain, Respondent refused to do so in orderto seek court review of the validity of the UFW's certification.The parties stipulated to the essential facts and submitted this casedirectly to the Board.
The Board, in its review, noted that although both the NLRB and ALRBgenerally prohibit the relitigation of representation issues in atechnical refusal-to-bargain proceeding, an exception exists wherethe underlying election was conducted in an atmosphere of fear orcoercion. In this case, the Board reviewed the facts and concludedthat the underlying election was in fact conducted in such anatmosphere of fear and coercion. The Board found that during thedays preceding the election, striking employees threatened largegroups of employees with physical beatings and calling theImmigration and Naturalization Service (INS); the threats wereaccompanied by acts of physical force (strikers held rocks in theirhands while making threats, blocked vans carrying workers out of thefields, and punctured the tires of one of the nonstrikers; inaddition, one striker swung a stick at the general manager in front ofa large number of workers); and, during the election, groups ofunion supporters who were continually campaigning among workerswaiting in line, threatened them with job loss or calling the INS ifthey did not support the union. The Board concluded that suchmisconduct, even though engaged in by only workers or unionsupporters, rather than by the union or its agents, constitutedaggravated misconduct, and was grounds to set aside the election.
Dissenting Opinions
Member Waldie dissents. In his view, this Decision erodes thestatute's intention to promptly resolve election issues, frustratesworkers' attempts to achieve the beginnings of a ' bargainingrelationship with their employer, and virtually eliminates thestatutory provision of makewhole in such refusals to bargain.
Member Henning vigorously dissents from the majority's Decision toadopt the NLRB's Subzero decision and again review the merits ofRespondent's election objections. He believes the Board shouldcarefully scrutinize allegations of threats or violence when it isreviewing the representation case, and not years later in the courseof reviewing an unfair labor practice proceeding. Member Henningfaults the majority for failing to accord a sense
32.
CASE SUMMARY
of finality to the Board's Decisions and for deprivingRespondent's workers of the right to union representation whichthis same Board awarded them two years ago.
This Case Summary is furnished for information only and is not anofficial statement of the case, or of the ALRB.
